An SIUC faculty blog, brought back to life by the Illinois funding crisis.

Tuesday, June 7, 2011

Unions file Unfair Labor Practice (ULP) charge

The four IEA unions on campus have filed their long-awaited Unfair Labor Practice charges against the SIU Board of Trustees. Their news release is embedded after the break. Here's a link to the (brief) Southern Illinoisan story. The fundamental charge shared by all the unions is that the Board failed to negotiate in good faith; the unions also charge that the Board's unilateral imposition of terms (including furloughs) was unlawful.

My understanding is that the imposition of terms is unlawful if there was no genuine legal impasse between the two sides, because exhaustive (my word) good-faith negotiations had not taken place. Thus the unions would need to show that the administration did not negotiate in good faith to substantiate their first charge; to prove the imposition of terms illegal, my understanding is that the unions would only need to show that whatever, if any, good-faith bargaining took place, it wasn't enough to justify the board's unilateral decision to impose its own terms. The Board would claim in reply that it made a substantial effort to negotiate in good faith, but that given the stubborn refusal of the unions to budge, and the looming deadline of the end of the fiscal year, it was justified in imposing terms. So who's right?

"Good faith bargaining" and "impasse" are rather complex legal conceptions. It is obviously impossible to look inside the minds of the two bargaining teams to see who is bargaining with "good intentions" (whatever exactly that means); and there is distinction between "hard bargaining" and bargaining in bad faith. You can maintain your initial position without compromise, for example, and do it in good faith bargaining. My understanding (informed by a quick reading of an interesting article by University of Indiana Law professor Kenneth G. Dau-Schmidt) is that the government's legal role in promoting "good faith bargaining" is designed to help the two sides reach an agreement with the minimum amount of labor unrest (and waste of resources or disruption via a strike or the like), while allowing them the autonomy to bargain for themselves and employ the economic tools in their arsenal (including strikes by unions and imposed terms by employers). It's a difficult balancing act.

To the best of my knowledge, there is no agreed upon statutory definition of good faith bargaining. It's a matter of legal precedent and concrete examples. I'm no expert on this, but in one crucial 1956 Supreme court case (NLRB v. Truitt Manufacturing Co), the Court ruled that the NLRB (National Labor Relations Board) was within its authority to take the employer's refusal to share information about its financial status as evidence of bargaining in bad faith. This bears at least some resemblance to what the unions have been saying, that the administration claims that furloughs are required by the university's fiscal situation but refuses to justify this claim in a satisfactory manner. Of course the Chancellor has provided some financial information (and other information is publicly available), but the administration bargaining team insisted, according to those on the faculty team, that they didn't need to convince the FA that the university was broke: they were simply going to get their $1 million one way or another. Clearly the Board team hasn't been terribly interested in reaching an agreement with the unions about the fiscal status of the university--but real efforts to reach such an agreement may be rather more than what is legally required for good faith bargaining.

Another anecdote points in a similar direction. At one point in administration-FA negotiations someone on the Board team blurted out something like "Great, so we're at impasse!"--only to be shot down by others on the Board team. My understanding would be that if an employer goes into negotiations intending only to reach an impasse so as to impose its own terms, that would be an example of bad faith negotiation, negotiations designed not to reach an agreement but to reach impasse so as to allow the employer to have its way. But I'm not sure how exactly one proves this.

At any rate, given the lengthy legal procedures that would be required, the most likely scenario is that the ULP would be dropped as part of a collective bargaining agreement that addressed the concerns raised in the ULP. But it is important to discuss & debate what good faith bargaining requires of both sides; this can help keep the pressure on so as to improve the chances for a resolution. Ultimately, what matters will probably be not what the Labor Board decides but what the faculty and staff of SIUC decide. If the two sides don't reach agreements and the unions call for a strike, the faculty and staff will decide, with their feet, whether they think the administration has negotiated in good faith or not.

I will review and post comments as quickly as I can. Comments that are substantive and not vicious will be posted promptly, including critical ones. "Substantive" here means that your comment needs to be more than a simple expression of approval or disapproval. "Vicious" refers to personal attacks, vile rhetoric, and anything else I end up deeming too nasty to post.

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Deo volente is Latin for "God willing." It's the official motto of Southern Illinois University Carbondale, chosen because deo volente flumine non surgente ("If the Lord is willing and the river don't rise") was too long to fit on a t-shirt.

The ostrich and additional Latin motto (sic) on the upper right are a holdover from Deo volente I, when our late, lamented Chancellor used that image to demonstrate that her critics were willfully blind. If you can't translate that Latin motto, I know a Latin class you can enroll in. We could use the tuition money.